I-601 Provisional Waiver Update

There are only 7 working days left in 2012 and USCIS remains silent on provisional waivers for unlawful presence. Although there is no reason to suspect that the rule change WON’T be implemented, it now seems unlikely that it will happen before next year.

To review once more, USCIS is expected to create a new rule which will make it easier for some people to become legal immigrants to the U.S. Existing law is very harsh on people who are in the U.S. illegally–people who are here illegally for more than 180 days are prevented from immigrating legally for 3 years once they leave. Even more harsh, people in the U.S. illegally for one year or more are prevented from immigrating legally for 10 years.

Long term, many people in favor of immigration reform would like to see this 3/10 year bar relaxed because it makes it very difficult for people to become legal immigrants once they have stayed in the U.S. illegally for even a relatively short amount of time. However, current law does allow some relief in the form of I-601 waivers. If an immigrant who is subject to the 3/10 year bar can show that his absence would cause extreme hardship to a U.S. citizen family member, he can receive a waiver that allows him to immigrate legally without waiting for his bar to expire.

Unfortunately, current rules require the I-601 applicant to return to his home country while applying for the I-601 waiver and because this process can be somewhat lengthy, this means that relatives end up spending a long time apart. The proposed rule change (which is what we’re waiting for USCIS to approve) would allow for immigrants to apply for the I-601 waiver while remaining in the U.S., then, after it was approved, he would go back to his home country briefly for an interview at the consulate after which he could return to the U.S. to rejoin his family.

Applying for a waiver is a complex process the requires the help of an experienced immigration attorney. It’s important to submit the strongest possible argument for undue hardship to maximize your chances of receiving a waiver. This applies to all I-601 waivers but particularly so for the provisional waivers because appeals are not allowed for them there is only one chance to get it right.